by Ruben Tillman
The Supreme Court of Canada (the “SCC”) has ruled that people located outside of Canada can assert rights protected under s. 35(1) of the Constitution Act, 1982, which says: “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”.
Justice Rowe, writing for a majority of seven justices, ruled that “aboriginal peoples of Canada” means “the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact” (para. 31).
As a result, Richard Desautel, a member of the Sinixt Nation (also known as the Lakes Tribe of the Colville Confederated Tribes located in what is now Washington State), could assert a right to hunt in traditional Sinixt territory in BC, although Mr. Desautel is not a Canadian citizen or resident.
The decision is important, because it represents further recognition by the Court of the real impacts of colonialism on Indigenous societies, which persist to this day.
In the case of the Sinixt, their traditional territory extends from north of Revelstoke in BC to Kettle Falls in Washington State. Smallpox ravaged the area in the 1780s. In 1846 the Oregon Boundary Treaty imposed an international border right through Sinixt territory. Further, BC enacted An Act to Amend the Game Protection Act, 1895 in 1896, which said, “[i]t shall be unlawful for Indians not resident of this Province to kill game at any time of the year”. Although the Sinixt continued to hunt in BC despite a significantly reduced population, an imposed border, and a law prohibiting this, by 1929, the Canadian Arrow Lakes Band (which included members of the Ktunaxa and Secwepemc Nations as well as Sinixt) officially had a population of three. When the last registered member of the Band died in 1956, the federal government declared the Band extinct.
The majority of the SCC rightfully recognized these impacts, quoting from the Report of the Royal Commission on Aboriginal Peoples while noting that “[t]he displacement of Aboriginal peoples as a result of colonization is well acknowledged”, and that to exclude peoples who were forced to move out of Canada would risk “perpetuating the historical injustice suffered by aboriginal peoples at the hands of the colonizers” (para. 33, quoting from R. v. Côté,  3 S.C.R. 139).
In a word, an injustice was avoided with this decision.
Van der Peet
A further positive aspect of Desautel is the majority’s treatment of the problematic Van der Peet test for Aboriginal rights. The test required the Court to determine whether a “relevant pre-contact practice, tradition or custom existed and was integral to the distinctive culture of the pre-contact society”, and further whether the claimed “modern right” is “demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice” (para. 51).
As John Borrows has noted, the Van der Peet test “further entrenched a view that Aboriginal nations were past-tense peoples … the courts will only protect what once was integral to Aboriginal cultures, not necessarily what is significant to them today” (p. 120 of “Challenging Historical Frameworks: Aboriginal Rights, The Trickster, and Originalism”, in The Canadian Historical Review, Volume 98, Number 1, March 2017, pp. 114-135 (Article)).
Desautel does not reform the Van der Peet test; however, the majority agreed with the Provincial Court Judge who originally heard the case, that Mr. Desautel’s hunting in BC was a “continuation” of pre-contact practice, even though the Judge also found that Sinixt people had not travelled to or hunted in BC since the 1930s. Instead, the Judge found that “the land was not forgotten … the traditions were not forgotten and … the connection to the land was ever present in the minds of the members of the Lakes Tribe of the CCT” (para. 50 of R. v. DeSautel, 2017 BCPC 84).
The Crown argued that “continuity” requires an ongoing presence in the lands over which an Aboriginal right is asserted. The majority of the SCC confirmed “this has never been part of the test for an Aboriginal right” (para. 63). While this is positive, it is also narrow in scope. Justice Rowe explicitly declined to address whether or not an Aboriginal right can be lost or “abandoned” by non-use. The Van der Peet test therefore remains problematic, effectively freezing Indigenous societies in the past in an attempt to determine what rights they presently have.
Another issue hovering beneath the surface of this case, and carefully avoided by the majority of the SCC, is that of sovereignty. The Crown argued that to recognize the right of the Sinixt to hunt in Canada was “incompatible” with Canadian sovereignty, because it would necessarily give the Sinixt the ancillary right to cross the border to hunt, and Canada has the right to control its borders. Since Mr. Desautel crossed the border without incident, the SCC declined to address this issue.
Justice Rowe distinguished this case from Mitchell v. M.N.R., 2001 SCC 33. In Mitchell, Grand Chief Michael Mitchell of the Mohawk Canadians of Akwesasne claimed the right to bring goods from the US into Canada for trade. The majority in that case found there wasn’t enough evidence to establish such a right; however, the concurring reasons of Justice Binnie addressed the sovereignty issue head on, noting that “the very purpose of the claimed trading/mobility right depends on a boundary that is itself an expression of non-aboriginal sovereignties on the North American continent” (para. 111).
Under British colonial law, when Britain took possession of a new territory, the already existing laws continued to be in force, except insofar as they were “unconscionable or incompatible with the Crown’s assertion of sovereignty” (para. 141 of Mitchell, quoting Professor B. Slattery). Indeed, it is pursuant to this colonial doctrine that the courts recognized Aboriginal rights prior to their constitutional entrenchment in s. 35(1) (although the exact relationship between “common law Aboriginal rights” and “s. 35 rights” is not entirely clear, as highlighted by the brief discussion in Desautel at paras. 67-69). In any case, since a “fundamental attribute of sovereignty” is control over the mobility of goods and persons into the country, an Aboriginal right to move good and persons in and out of the country is incompatible with Crown sovereignty, according to Justice Binnie (para. 160 of Mitchell).
One can see the clear analogy between Mitchell and Desautel. What happens if a Sinixt member attempts to cross the border to hunt when the border is closed, for example, due to a global pandemic? The Court’s answer, insofar as it has one, is that the Crown already has the ability to restrict Aboriginal rights subject to the justification test in Sparrow. Since the right to hunt is not by itself incompatible with Crown sovereignty, Desautel is different from Mitchell.
The majority in Desautel carefully maneuvered around the politically-charged implications of its decision, and the factual context underlying it. Justice Rowe hinted at potential changes to the test for the duty to consult, justification for infringement of Aboriginal rights, and Aboriginal title, where an Aboriginal group is located outside Canada. But the resolution of these questions is left for another day.
Finally, a comment on the dissenting reasons of Justice Côté. She would have ruled that s. 35(1) does not encompass Aboriginal groups located outside of Canada. She also would have ruled, in any case, that the Van der Peet test was not met, because of the gap in hunting practices in BC mentioned above. Both these findings are difficult to grapple with. We will just discuss the first, regarding Justice Côté’s interpretation of s. 35(1).
In short, Justice Côté employs an almost quasi-originalist methodology to her interpretation of the constitution. She prefaces her reasoning by saying, “the framers’ intent was to protect the rights of Aboriginal groups that are members of, and participants in, Canadian society” (para. 105). Her focus on “the framers’ intent” is inconsistent with the dominant methodology of constitution interpretation in Canada.
The preferred methodology for constitutional interpretation is the “living tree” doctrine, following the “Person’s case” of the Judicial Committee of the Privy Council (the “JCPC”) (Edwards v. Canada (Attorney General)  AC 124), which decided that women could be senators. Although it was entirely possible that the “framers” intended in fact to exclude women, the JCPC said “[t]he exclusion of women from all public offices is a relic of days more barbarous than ours” (p. 99). The case is famous for the following words:
The B.N.A. Act [i.e. the Constitution Act, 1867] planted in Canada is a living tree capable of growth and expansion within its natural limits … Their Lordships do not conceive it to be the duty of this Board …. To cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house… [pp. 106-107].
The modern SCC has repeatedly affirmed that the “living tree” doctrine of Edwards is a fundamental principle of constitutional interpretation (for example, in Reference re Same-Sex Marriage, 2004 SCC 79 at para. 22).
As John Borrows has noted, this “work-in-progress” approach to our constitution is especially appropriate given the nature of the Canadian constitution. Ours is “similar in Principle to that of the United Kingdom” (Constitution Act, 1867, preamble) and therefore includes numerous unwritten conventions and principles, not all of which have been judicially identified.
By her focus on the “framers’ intent”, Justice Côté implicitly invokes a “founding moment” for the Constitution, one which in fact does not exist. As a result, her reasoning focuses on the text of the provision in an attempt to ascertain what “the framers” intended when they drafted it. Whereas the majority reviewed the jurisprudence with respect to the purpose of s. 35(1), for insight into its scope, Justice Côté employs tools more commonly used in the interpretation of ordinary statutes in order to restrict the meaning of “aboriginal peoples of Canada”. For instance, she employs the presumption against tautology, which says that the legislature doesn’t use superfluous language, to argue that, if the majority is right, then “of Canada” in the words, “aboriginal peoples of Canada”, is meaningless, since “aboriginal peoples” already covers the groups that the majority says s. 35(1) covers.
The quasi-originalist approach of Justice Côté mirrors the Van der Peet test discussed above. In the same way that Van der Peet privileges an arbitrary moment of time to determine whether or not a particular right was “integral” to an Indigenous society, constitutional interpretation that is too heavily focussed on the framers’ intent arbitrarily privileges the moment when the Constitution was enacted. These are fruitless and self-defeating approaches, since it’s not really possible for judges to determine what was in the minds of “the framers” when they enacted the Constitution, nor is it possible for courts to plausibly opine on the nature of complex societies as they existed over a century ago.
R. v. Desautel, 2021 SCC 17